Patently Wrong

Oddly, the big technology news of recent weeks wasn’t about technology at all. Yet again, it was about patent litigation, and Research In Motion’s (RIM) decision to pay a staggering $612 million dollars to avoid the threat of a court-ordered shutdown. Never mind that RIM didn’t infringe any patents and would have been vindicated had the judicial process continued; instead, NTP was able to hold millions of Blackberry users hostage to a bluff and collect a tidy ransom.

The outcome of the case is unfortunate. Sadly, the resolution is likely to only further entice patent trolls. And why not? The patent system in the United States is so broken that it actually encourages abuses. Patents aren’t vetted widely enough to ensure that only true innovations are awarded patent rights. Hence, dubious yet nonetheless” valid” patents muddy the water, allowing competitors and trolls alike to subvert other applications for patents and torpedo legitimate businesses. And unlike the rest of the legal system, an alleged patent infringer is seemingly guilty until proven innocent. It is often far cheaper — orders of magnitude cheaper — to simply settle a baseless claim than defend it. RIM CEO Jim Balsillie fought valiantly to avoid intellectual property blackmail; however, even Balsillie couldn’t refute the potential harm of his Blackberry service going black.

Ideally, the House Subcommittee on Courts, the Internet, and Intellectual Property will recommend radical steps to improve the troubled patent system. One fundamental change under consideration — and the one change that I think is crucial — is the addition of a public review to the patent application process. At the moment, patent applications remain largely secretive. A public review would allow all interested parties — the inventor, any competitors, and the general public — to debate the validity of the patent early and often. If, after such scrutiny, the patent is deemed valid, it’s likely to be a true breakthrough, worthy of the” limited monopoly” provided by patent law. Otherwise, well, the inventor gets sent back to the drawing board (perhaps literally).

Interestingly, a public review need not demand that participants reveal confidential data, including forthcoming patent applications. Instead, all parties draw from prior art, obvious techniques within the art, and existing patents — all public information and the same information used by USPTO examiners — to substantiate the claims of the proposed patent.

Deeply and broadly-inspected patent claims would discourage frivolous filings, would challenge inventors and prosecutors to file more meaningful patents, and ultimately would improve the quality of issued patents — including software patents, if those have to persist. Moreover, it reveals innovations almost immediately, promoting further innovation. Believe it or not, the patent system was created to advance progress not stifle it.

Patents are vitally necessary in a world driven by technological change. It’s time to reinvent the United States patent system to catch up with the rest of the 21st Century.